The Centre for Development and Enterprise (CDE) today called on President Ramaphosa to urgently appoint a retired judge to conduct an enquiry into the National Prosecuting Authority (NPA) and its leadership, performance, structure and independence.

This is one of a number of CDE’s recommendations contained in a new report in the AGENDA 2024: Priorities for South Africa’s new government series – ACTION FIVE: Energise the NPA. Other recommendations include the immediate release of the full archive of the Zondo Commission to the NPA, the introduction of specialised corruption courts, the President publicly backing the work of the NPA, and support for the use of private resources to help kickstart the prosecution of major corruption and commercial cases.

Speaking at the launch of the report, CDE executive director Ann Bernstein said that law enforcement agencies are seemingly unable to protect the state from “the enemies within” – powerful people who use their positions for self-enrichment and patronage. This is an obstacle to economic growth and prevents the state from fulfilling its critical service delivery roles.

When the current National Director of Public Prosecutions (NDPP) Shamila Batohi was appointed in December 2018, the expectation was that she would clean up the NPA, restore its capabilities, and fast track the prosecution of major corruption cases. After nearly six years, this has not happened.

The NPA has failed to institute and successfully prosecute a significant number of major corruption cases long identified in the forensic reports into the Passenger Rail Authority of South Africa (2017), Transnet and Eskom (2018), in the reports of the Zondo Commission (2022), and multiple reports by investigative journalists.

In several instances, these reports provided the NPA with a complete or near complete basis to issue an indictment and, where this was not so, more than enough time has elapsed to have permitted the commencement of prosecutions. This poor record has been replicated in the NPA’s anaemic efforts to initiate prosecutions in the other priority areas of organised crime, complex commercial crime, and crimes of tax evasion.

“The disappointing performance of the NPA has encouraged impunity among criminals; it has failed to deter the spread of corruption; and it has led to a pervasive sense of despair that the state cannot enforce the law,” said Bernstein.

“We need to restore accountability. To do this, we need a clear understanding of the reasons for the failure of the NPA, and its poor record in prosecuting (much less securing convictions) in most of the major corruption cases it has been investigating,” she added.

There are a number of possible causes of the NPA’s failure to deliver. These range from issues of leadership to internal divisions that prevent the discharging of problematic prosecutors to a lack of internal capacity after the NPA was hollowed out during the state capture era. Furthermore, the NPA’s ‘kitchen sink’ approach of assembling all possible charges against an accused rather than finding one or two easier-to-prove charges and ensuring corrupt people are found guilty has, in the view of many legal practitioners, held back progress.

CDE recommends a number of catalytic actions to energise the NPA and get it back on track. These include:

1. The President should appoint a retired judge to conduct an enquiry into the NPA
This urgent enquiry must assess the leadership, performance, structure and independence of the NPA. Its terms of reference should include a considered assessment of legal strategies that delay and frustrate the prosecution of accused in corruption cases (so called ‘Stalingrad tactics’) resulting in guidelines – in accordance with the Constitutional right to a fair trial – on how courts ought to manage these situations. The recommendations from this enquiry should be made to the President and Minister of Justice within eight months and tabled in Parliament with an action plan within three months of receipt.

2. Encourage transparent, independent public – private partnerships
In order to address some of the funding and resource challenges that have been identified, the NPA ought to take up the offers that the private sector has made to provide legal and forensic assistance for ‘specialised, dedicated, multi-disciplinary measures to combat corruption’.

Formal structures should be established to provide this assistance through entities funded by the private sector, to pay the private legal and forensic practitioners required by the NPA and the Independent Directorate against Corruption (IDAC). We are aware that such endeavours are currently being pursued by the NPA, which CDE supports.

It is important that measures are taken to ensure that the independence of the NPA and IDAC are not compromised in any way. These entities should be viewed as interim structures (not more than five years) to help kick start prosecution in major priority cases.

3. A significant increase in the NPA budget is essential
The NPA is the lynchpin of the entire criminal justice system, so its effective functioning has knock-on effects throughout the system. An executive that underfunds the NPA undermines the credibility of its commitment to dealing with corruption.

4. Establish the Independent Directorate against Corruption (IDAC) as a matter of urgency 
The National Prosecuting Authority Amendment Act, 2024 provides for the establishment of IDAC, which is to be composed of investigators and prosecutors. This potentially lays the foundation for the revival of the ‘Scorpions model’ which worked successfully but was disbanded in 2009 at the instigation of the ruling party at the time.

The regulations needed to allow the National Prosecuting Authority Amendment Act, 2024 to be brought into effect are minimal. The Director-General of the Department of Justice should, as a matter of priority, give instructions to the Office of the Chief State Law Advisor to draft the regulations and then publish them for comment as soon as practicable.

There remains a concern as to whether IDAC meets the independence standards set out by the Constitutional Court. CDE’s recommendations concerning strengthening IDAC’s capacity should not be seen as an alternative to a careful review by the Minister of Justice and Parliament of its status as a potential Chapter 9 institution.

5. Establish special corruption courts
The Minister of Justice should request the Chief Justice to discuss with the Judge Presidents of the High Courts to establish special corruption courts. These special courts should draw on retired and acting judges (senior counsel with criminal and commercial experience) to obviate delays but without placing extra pressure on the ordinary work of the courts.

6. Release the full archive of the Zondo Commission
The Minister of Justice should immediately issue an instruction to the Department of Justice to release the full archive of the Zondo Commission including its witness statements and investigation materials, so that it is available to the NPA.

7. The President should make a decision as a matter of urgency on the National Director’s request a year ago (August 2023) to suspend a Director in the NPA

8. Presidential and Ministerial backing for the NPA and its work 
The President and Minister of Justice must publicly indicate their unconditional support for the work of the NPA – even if those charged are powerful people. This needs to be done on an ongoing basis to remind the public, the cabinet, departments of state and the NPA itself, of their support for the vital work of the NPA wherever its investigation take them.

9. The NPA must publish a timeline showing how it will prioritise prosecutions arising from the Zondo Commission state capture report (before the end of 2024)

“The NPA’s performance has been disappointing, undermining law enforcement and accountability in a society where the rule of law is hanging by its fingernails. There are a number of explanations for this lack of performance – some of them contested. We need to know what is holding back the NPA, and what measures should be taken to turn the situation around as soon as possible,” said Bernstein.

For media enquiries and interview requests, please contact Refiloe Benjamin: media@cde.org.za | 011 482 5140.

ABOUT AGENDA 2024: PRIORITIES FOR SOUTH AFRICA’s NEW GOVERNMENT
AGENDA 2024, based on CDE’s extensive policy work and recent consultations with experts, business leaders, former public servants and academics, sets out to answer what is by far the most important question facing South Africa: what can a new government do to get the country back on track after 15 years of stagnation and decline?

CDE’S AGENDA 2024 identifies five urgent priority areas that the new government needs to focus on: fixing the state; driving growth and development by freeing up markets and competition; building a new approach to mass inclusion; tackling the fiscal crisis; and strengthening the rule of law.

Over the coming weeks and months, CDE will be releasing a series of reports on the priority areas set out above. Previous reports in the series can be accessed here.